Scalia: Not the Stuff of Which Martyrs Are Made

Andrew M. Haines
By | July 2, 2013

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We’re in the midst of Thomas More feasts (June 22 in the Roman Church, July 6 in the Church of England, and July 9 on the old calendar), and a couple things are worth calling to mind.

First, (the confusingly named) Elizabeth Scalia’s piece today at First Things, “Antonin Scalia, Bad Person.” It’s short, sweet, and to the point—so there’s no excuse not to read it. Nevertheless, I’ll give one by distilling it even further: the gist of the article is that Justice Scalia’s dissent in Windsor (a.k.a. DOMA) is quintessentially humanist—the same sort of humanism that pervaded the thought and life (and death) of Thomas More. Justice Scalia, in vindicating the right of Americans to defend traditional marriage, argues that a court ruling which would declare such a view null and void is, more or less, the epitome of tyranny. (This is not insignificant, since Scalia, like More, is a Catholic jurist who finds himself operating alongside a reign of irrational moral absolutes, and who wears funny hats.)


The second item—another First Things article, strangely enough—is a look at Thomas More qua Speaker of the House of Commons. (Disregard who wrote it, that’s not important.) In particular, the article includes a short statement issued by More twelve years before his martyrdom, which more than ever merits careful reflection:

Most gracious Sovereign [says Sir Thomas to King Henry VIII], considering that in your High Court of Parliament is nothing intreated but matter of weight and importance concerning your realm and your own royal estate, it could not fail to let and put to silence from the giving of their advice and counsel many of your discreet Commons, to the great hindrance of the common affairs, except that every of your Commons were utterly discharged of all doubt and fear how any thing that it should happen them to speak should happen of your Highness to be taken… It may therefore like your most abundant Grace, our most benign and godly King, to give to all your Commons here assembled your most gracious licence and pardon, freely, without doubt of your dreadful displeasure, every man to discharge his conscience, and boldly in everything incident among us to declare his advice.

The piece concludes by stating that it was More’s commitment to such “discharge” of conscience that made his protection of conscience, in the end, so monumental. According to Elizabeth Scalia, the homonymous judge’s “passionate opinions flow from his pen like lava, seemingly indiscriminate, but nevertheless finding every curve and crevice of what lies before them.” It’s hard to image, though, that in his rebuke, Justice Scalia sought anything apart from “the profit of [the] realm and honour of [its authority].”

Still, we know how such stories end. Thomas More, famously, was “not the stuff of which martyrs are made.” Neither, I suspect, is Scalia. But that might not make a difference.

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  • Andrew Prizzi

    Greetings Andrew,

    I’m not sure if there is sarcasm in your piece or not. The comparison between Scalia and More distorts the records of both. As Elizabeth Scalia points out, Justice Scalia is “OK with ballot initiatives and laws that have approved gay marriage”. He’s also “OK” with ballot initiatives that approve contraception, abortion, and anything else under the sun. He is on record that his religious beliefs have nothing to do with his job as a judge- a position at odds with both Thomas More and the Catholic faith. The bottom line is that Scalia is a liberal, perhaps the most liberal member on the court in fact because of his total rejection of moral law in favor of legal positivism. He decries the imposition of so-called “gay marriage” or abortion on demand by 5 out of 9 Supreme Court Justices, but has no problem whatsoever with the impostion of those things by a majority of Congress or a popular referendum. He holds the legal procedure of the civil law sacred while casting the Divine Law into the garbage bin.

    Pax Christi

  • Andrew M. Haines

    Thanks for reading, Andrew, and for the comment.

    The most important lines in the article, of course, are the last, and I think they do the job of ruling out too strict a comparison between More and Scalia. (The funny hat bit was naturally a little sarcastic.)

    What I think I’d press, however, is that More probably wasn’t as pristinely inviolate as some would make him out to be. He certainly wasn’t a bad man; he did make a lot of prudential concessions, though, albeit in greatly different circumstances, that are easy to question as possibly compromising. (No one was voting for abortion on demand in 1530, but inviting heretics to stay at your home in order to facilitate private dialogue was hardly “above board” with holding public office in a Catholic state.) There’s the famous line from Bolt’s play concerning law and the Devil, which I think shows, too, the degree to which More separated his conscience from the natural good of legitimate rule. (If you want to argue that legitimate rule is nullified in cases of sanctioned murder, that’s fine; but then Scalia is part of a sham court that has bigger problems than liberal justices.)

    Anyway, my goal wasn’t to set out a very detailed comparison—or a vindication of Scalia, for that matter. Only to suggest that in extreme circumstances, it doesn’t take much to voice heroic truths.

  • Andrew Prizzi

    Hello Andrew,

    I use the word liberal to describe Scalia in the sense the Church has used it, not as it’s used in American political discourse. Liberals confuse liberty and license because they reject authority, especially the authority of God. “Conservatives” as Americans use the term are almost all liberals in the Catholic sense. Liberalism is not a minor issue on the court, it is at the heart of its problems. To elaborate a bit on why I say Scalia may be the most liberal justice on the court…the majority in the recent decision struck down DOMA because they believe it is an unjust law. They are mistaken, but that’s what they believe. Scalia on the other hand, does not believe that there is anything such as a just law or an unjust law. As long as a law is enacted according to the civil proper procedure, it is the law. Period. Questions of justice and morality are irrelevant. The irrelevance of justice is a strange position whose job title is justice, I would say. To be clear I’m not lambasting Scalia as an irredeemable monster. He’s a man with a good but fallen nature just like the rest of us. We should pray for him. We must also recognize his errors and the reality that his judicial philosophy is totally foreign to Catholic teaching.

    I make no claim that Thomas More was perfect. I do enjoy reading his work and works about him, but I’m not sure which particular episode you’re referring to when you talk about having a heretic over to his house. Who are you referring to?

    Pax Christi

  • Andrew M. Haines

    Took me a moment to find the reference: it was from R.W. Chambers, Thomas More, p. 275. More accepted into his household a child who was openly heretical; he had the child flogged for publicly teaching heresy to other children (as documented by sources). I’m pretty sure there’s a reference in the same book to further “dinner table” type interactions with heterodox friends, but I don’t have the chance to look for it right now. Chambers is definitely a very worthwhile read, if you’re interested in More.